Articles Posted in Employment Discrimination

equal payA new law, entitled the Diane B. Allen Equal Pay Act (DAEPA), went into effect in New Jersey on July 1, 2018. Described by the media as “the strongest equal pay law in America,” the law amends the New Jersey Law Against Discrimination (NJLAD) to address disparities in pay based on all protected categories. If a covered business pays workers at different rates, it must justify the difference based on factors like education or experience. The state recently issued reporting forms for businesses that enter into certain contracts with the state, which they must submit to the New Jersey Department of Labor and Workforce Development.

The federal Equal Pay Act (EPA) of 1963 prohibits paying employees at different rates “on the basis of sex” in jobs that “require[] equal skill, effort, and responsibility, and…are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). The statute allows exceptions where the disparity is based on seniority, merit, “quantity or quality of production,” or other non-sex-based factors. Id. The EPA amended the Fair Labor Standards Act (FLSA), and allows complainants to recover damages through the same process for minimum wage and overtime violations. Id. at § 206(d)(3). The law has a two-year statute of limitations, meaning that complainants cannot recover damages for more than two years of New Jersey equal pay violations. Id. at §§ 216(c), 255(a).

The DAEPA was introduced in the New Jersey Legislature as Senate Bill 104 on January 9, 2018, and as Assembly Bill 1 on March 22. It passed both houses on March 26, and was signed into law by the governor on April 24, with an effective date of July 1. According to media analyses of federal labor statistics, female workers are paid eighty-two cents for every dollar paid to male workers in New Jersey. This number includes all women throughout the state. For women of color, the pay disparity is much greater. The DAEPA goes further than equal pay statutes that focus on sex or gender. It prohibits pay discrimination on the basis of any protected class identified by the NJLAD, such as race, religion, nationality, sexual orientation, etc.
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Legal News GavelThe U.S. Constitution limits the government’s ability to infringe on a range of rights, including the First Amendment right to free speech. In the context of New Jersey employment matters, this usually places far more limits on public employers than private employers. As a general rule, a private employer does not infringe on an employee’s freedom of speech if they discipline or fire that employee because of statements they have made. Since public employers are part of the government, they have less leeway with regard to employee speech. A lawsuit filed earlier this year, however, alleges that a private employer violated the plaintiff’s constitutional rights by firing her because of her speech. Briskman v. Akima, LLC, No. 2018-5335, complaint (Va. Cir. Ct., Fairfax Cty., Apr. 4, 2018). The plaintiff claims that the defendant fired her “out of fear of unlawful retaliation by the government for constitutionally protected speech,” id. at 8, and that this makes her termination a violation of her First Amendment rights.

Caselaw has largely established broad protections for the free speech rights of public employees with regard to their employment. According to the U.S. Supreme Court, a public employee who speaks out about “issues of public importance” cannot be subject to termination by their employer, unless their statements were “knowingly or recklessly” false. Pickering v. Board of Education, 391 U.S. 563, 574 (1968). This does not apply, however, when the employee is speaking in their official capacity as a government employee. Garcetti v. Ceballos, 547 U.S. 410 (2006).

Private employers have fewer restrictions with regard to disciplining employees, including terminating them, for statements they have made. This often applies even when the statement or statements at issue involved matters of public concern that were unrelated to the employee’s position with the employer. Some exceptions apply, such as when the speech involves activities protected by the National Labor Relations Act, 29 U.S.C. § 157, or when a state or local anti-discrimination law includes protections for “political activities,” N.Y. Lab. L. § 201-D. The Third Circuit Court of Appeals has ruled that termination for an employee’s political activities, or their refusal to participate in political activities, could violate public policy. Novosel v. Nationwide Ins. Co., 721 F. 2d 894 (3rd Cir. 1983).

Legal News GavelNew Jersey is among the majority of the states in the U.S. in allowing, under the supervision of a doctor, the possession and use of marijuana for medical purposes. The New Jersey Compassionate Use Medical Marijuana Act (CUMA), N.J. Rev. Stat. § 24:6I-1 et seq., enacted in 2009, defines permissible uses for the drug, establishes prescription guidelines for doctors, and creates a registry for patients. Federal law, however, still classifies marijuana as a Schedule I controlled substance, meaning that as far as the federal government is concerned, marijuana has “no currently accepted medical use in treatment.” 21 U.S.C. §§ 812 (b)(1)(B), (c)(I)(c)(10). Possession of marijuana with a valid prescription could therefore still be illegal under federal law. In an employment context, medical marijuana use that is entirely legal in New Jersey could lead to problems. Neither federal nor New Jersey employment discrimination laws prohibit adverse employment actions based on lawful medical marijuana use, but a bill currently pending in the New Jersey Assembly intends to change that.

The New Jersey Legislature, in enacting CUMA, found that “[m]odern medical research has discovered a beneficial use for marijuana in treating…certain debilitating medical conditions,” regardless of what federal law says. N.J. Rev. Stat. § 24:6I-2(a). It also found that state law enforcement officials are not responsible for enforcing federal laws and that “[c]ompassion dictates that “medical marijuana patients should be “protect[ed] from arrest, prosecution, property forfeiture, and criminal and other penalties.” Id. at § 24:6I-2(e). The provisions of CUMA mainly deal with registration of patients and certification of doctors.

The statute currently places no obligations or restrictions on employers. Section 16 of CUMA specifically states that employers are not required “to accommodate the medical use of marijuana in any workplace.” Id. at § 24:6I-14. The New Jersey Law Against Discrimination (NJLAD) does not include medical marijuana use as a protected category. See N.J. Rev. Stat. § 10:5-12(a). While it does include disability as a category, this is not likely to offer much protection for medical marijuana users. Not all conditions for which medical marijuana may be prescribed would qualify as disabilities under the NJLAD. Even if the underlying condition did qualify as a disability, it is conceivable that an employer could justify taking an adverse action because the employee’s conduct violates federal law, instead of because of the disability. This is where the proposed bill comes in.

Legal News GavelProfessional football presents multiple legal issues related to employment. New Jersey officially has no team in the National Football League. That said, both of the New York-based NFL teams, the Giants and the Jets, have used stadiums in Northern New Jersey as their home fields since the early 1980s. Issues affecting players in the NFL, particularly the lasting effects of concussions and other injuries, have received media attention in recent years. NFL cheerleaders have also made a variety of complaints regarding wages, working conditions, and sexual harassment. In 2016, the New York Jets settled a New Jersey wage and hour lawsuit filed on behalf of a class of NFL cheerleaders. In 2018, a former cheerleader, who had recently been fired by another team, filed a sex discrimination complaint with the Equal Employment Opportunity Commission (EEOC).

While NFL players usually receive generous salaries under contracts with their teams, cheerleaders are often paid far less and do not have the protection of a defined term of employment. NFL cheerleaders have recently made several successful wage claims. A lawsuit filed in New Jersey in 2014, Krystal C. v. New York Jets LLC, alleged that the compensation received by members of the Jets’ cheerleading squad, when compared to the number of hours they were required to work, was often substantially less than minimum wage. Cheerleaders were paid $150 per game and $100 for appearances at team-sponsored events, but not for other required activities like practices and rehearsals. The parties entered into a settlement agreement in 2016, in which the team agreed to pay $325,000 to the class of plaintiffs.

Claims of sex discrimination involving NFL cheerleaders have not received as much attention in the court system as wage claims. Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination prohibit discrimination on the basis of sex. Cheerleading, as an occupation, presents some challenges in this area. Technical skill, including proficiency in dance, is not the only requirement for the job of cheerleader. To put it bluntly, cheerleaders are expected to meet a particular standard of physical attractiveness.

Legal News GavelNew Jersey gender discrimination statutes protect workers from discrimination on the basis of sex or gender. An important feature of many types of sex discrimination is “sex stereotyping,” meaning the use of stereotypes commonly associated with one gender to assess an employee’s performance or a job applicant’s suitability for a job. Many cases deal with sex stereotyping as a way of penalizing an employee who fails to embody outward stereotypes, such as a female employee who an employer thinks appears too masculine, or a male employee who appears feminine. A recent study addresses another aspect of sex stereotyping that could lead to workplace discrimination:  the association of traits like confidence and intelligence with men, leading to more negative impressions of women possessing those same traits.

The U.S. Supreme Court first recognized sex stereotyping as a form of sex discrimination in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The plaintiff in that case alleged that the defendant passed her over for partnership because she did not conform to various feminine stereotypes. While partners at the firm praised the plaintiff’s ability to do her job, they also stated that her “aggressiveness apparently spilled over into abrasiveness.” Id. at 234. These traits, however, were not necessarily viewed as negatives in male employees. The court held that employers may not “evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Id. at 251.

The Third Circuit addressed sex stereotyping of male employees in a case involving a self-described “effeminate man” who did not “fit in” with his “rough around the edges” male coworkers. Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 287 (3rd Cir. 2009). He alleged a lengthy pattern of workplace harassment, including the use of nicknames like “Princess,” “Rosebud,” and others best not repeated. The defendant sought to dismiss the case on the ground that the plaintiff, who is gay, was actually making “an artfully pleaded claim of sexual orientation discrimination,” which the Third Circuit has found not to be covered under federal law. Id. at 291. See also Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3rd Cir. 2001). The court found, however, that the plaintiff’s claim centered on discrimination “because he did not conform to [the defendant’s] vision of how a man should look, speak, and act,” rather than his sexual orientation itself. Prowel at 292.

Employment laws in New Jersey prohibit discrimination based on disability. Most employment statutes include an exception for situations in which a particular individual’s specific disability prevents them from performing the ordinary duties of a particular job, even with reasonable accommodations by the employer. Several recent lawsuits claiming disability discrimination based on the medical condition known as sleep apnea have raised questions about whether the condition falls under this exception. Different courts have reached different conclusions about whether sleep apnea constitutes a “disability” under employment anti-discrimination laws.

Legal News GavelThe New Jersey Law Against Discrimination (NJLAD) offers a broad definition of “disability,” which includes both mental and physical conditions that impede “normal” functioning. N.J. Rev. Stat. § 10:5-5(q). A “physical disability” or “infirmity…which is caused by…illness” qualifies as a disability under the NJLAD. Id. The definition provided by the federal Americans with Disabilities Act (ADA) focuses on whether a condition “substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A).

Both statutes bar employers from denying employment to a person, or firing them, on the basis of a disability. The NJLAD provides an exception in New Jersey disability discrimination cases in which an employer can “clearly show[] that a person’s disability would prevent such person from performing a particular job.” N.J. Rev. Stat. § 10:5:29.1. The ADA includes this exception in its prohibition on discrimination by specifying that it only applies to “qualified individuals,” defined as people who “can perform the essential functions of the employment position” that they have or want. 42 U.S.C. §§ 12111(8), 12112(a).

Legal News GavelThe National Labor Relations Act (NLRA) regulates numerous interactions related to to labor organizing. It allows employees to assert New Jersey sex discrimination claims against both employers and unions for unfair labor practices. Labor unions’ obligations under the NLRA include a duty of fair representation. A recent decision by the National Labor Relations Board (NLRB) addressed an employee’s claim that a labor union breached this duty by discriminating against her on the basis of sex. The ruling harshly criticized the administrative law judge (ALJ) who ruled in the union’s favor. The NLRB vacated the ALJ’s ruling, finding that he “erred by relying in part on improper bases in making his credibility determinations.” International Longshoremen’s Association, Local 28 (Ceres Gulf Inc.) (“ILA”), 366 NLRB No. 20 at 1 (Feb. 20, 2018).

Labor organizations commit an unfair labor practice when they “restrain or coerce employees in the exercise of the rights guaranteed” by the NLRA. 29 U.S.C. § 158(b)(1)(A). Courts have identified specific ways that labor unions might unlawfully interfere with employees’ NLRA rights. The U.S. Supreme Court has held that a union has a duty “to represent nonunion or minority union members…without hostile discrimination, fairly, impartially, and in good faith.” Steele v. Louisville & N. R. Co., 323 U.S. 192, 204 (1944). A union violates the duty of fair representation “when it acts in a manner that is ‘arbitrary, discriminatory, or in bad faith.’” Vaca v. Sipes, 386 U.S. 171, 207 (1967). The NLRB views a breach of the duty of fair representation as an unfair labor practice.

The charging party in ILA has been a member of the union since 2001, usually working as a truck driver. According to the ALJ’s ruling, she began receiving union work referrals again in 2015 after an eight-year “union employment break.” ILA at 2. She alleges that she asked the union’s training coordinator to put her in training classes offered by the union several times during 2016, but he refused all of her requests. She further alleges that the coordinator sexually harassed her “when she periodically stopped by [his] office to request training.” Id. at 3. She allegedly made 36 requests for training, and she experienced sexual harassment while making 10 of those requests. She filed a complaint with the NLRB, alleging breach of the duty of fair representation through sex discrimination. She claimed that the coordinator denied her training opportunities because of her sex, and also because she refused his advances.

Legal News GavelFederal and state laws in New Jersey protect the rights of people with disabilities to have fair access to employment and to accommodations in the workplace that allow them to do their jobs. The Americans with Disabilities Act (ADA) of 1990 prohibits discrimination on the basis of a disability and requires employers to make reasonable accommodations for workers who are dealing with a wide range of disabilities. Since the ADA is a federal statute with nationwide reach, lawsuits and court rulings in other states can potentially affect New Jersey disability discrimination laws. Two recent ADA lawsuits illustrate how the statute can help New Jersey workers. One case involves an alleged refusal to hire an applicant because of their participation in an addiction recovery program. Equal Emp’t Opportunity Comm’n v. Volvo Group N. Am., LLC, No. 1:17-cv-02889, consent dec. (D. Md., Jan. 12, 2018). The other involves an alleged failure to engage in ADA-required processes regarding a request for an accommodation. McClain v. Tenax Corp., No. 1:17-cv-00049, order (S.D. Ala., Jan. 12, 2018).

The ADA’s definition of “disability” includes both “physical [and] mental impairment[s]” that are severe enough to “substantially limit[] one or more major life activities.” 42 U.S.C. § 12102(1)(A). It includes both “actual or perceived” impairments, meaning that a person who does not have a disability may still fall within the ADA’s protection if others think that they do. Id. at § 12102(3). The statute prohibits discrimination because of disability. This includes failing to make reasonable accommodations for an employee and refusing to hire an applicant in order to avoid making such accommodations. An employer does not have to make a requested accommodation if it can show that doing so would “impose an undue hardship” on its business. Id. at § 12112(b)(5)(A).

The Equal Employment Opportunity Commission filed the Volvo lawsuit on behalf of a job applicant claiming disability discrimination. The defendant allegedly rescinded a conditional offer of employment in early 2015, after learning that the applicant was undergoing addiction treatment. While the use of illegal drugs is not considered a disability under the ADA, “participating in a supervised rehabilitation program” while refraining from illegal drug use is. Id. at § 12114. According to the EEOC’s complaint, the applicant ceased the use of illegal drugs and began participation in a supervised treatment program in 2010. The treatment included the use of suboxone, which the applicant reportedly disclosed to the defendant. This allegedly led to the revocation of the offer. The parties reached a settlement in January 2018.

Legal News GavelFederal and state laws protect New Jersey employees against discrimination on the basis of disability and other factors. The federal Americans with Disabilities Act (ADA) of 1990 prohibits discrimination and requires employers to provide “reasonable accommodations” for employees with disabilities. One area of ongoing dispute in employment law involves whether employers must provide reasonable accommodations to employees who are pregnant or have recently given birth. The ADA does not specifically mention pregnancy or related conditions. The New Jersey Law Against Discrimination (NJLAD), however, specifically requires employers to make reasonable accommodations available in cases of disability, pregnancy, and religious practices. The “reasonableness” of a particular accommodation can be a subject of dispute under both New Jersey disability discrimination laws and federal disability discrimination laws. A new law in New York City, which will take effect in October 2018, will require employers to engage in “cooperative dialogue” with employees who are requesting an accommodation for multiple possible situations. Int. No. 804-2015-A (NYC, Jan. 19, 2018).

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of religion, sex, and other factors, with “on the basis of sex” defined to include pregnancy. 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). The statute does not address accommodations for religious observances or the various needs associated with pregnancy and childbirth. The ADA includes a failure to provide reasonable accommodations within its list of discriminatory practices, with an exception if the accommodation “would impose an undue hardship on the operation of the business.” Id. at § 12112(b)(5)(A). It defines “disability” to include a range of “physical or mental impairment[s].” Id. at § 12102(1).

The NJLAD prohibits discrimination in employment on the basis of disability, religion, sex, pregnancy, and multiple other factors. N.J. Rev. Stat. § 10:5-12(a). The definition of “disability” is similar to that of the ADA and includes various conditions “caused by bodily injury, birth defect or illness.” Id. at § 10:5-5(q). An employer violates the NJLAD by denying employment to “an otherwise qualified person” because of a disability, unless the employer can “clearly show[]” that a person’s particular disability “would prevent such person from performing a particular job.” Id. at § 10:5-29.1.

Legal News GavelIn New York City and New Jersey, employment laws prohibit discrimination on the basis of race and multiple other factors. Race discrimination in employment remains a serious problem all over the country, despite advances in the past 50 years. Some organizations, which were once quite open about their willingness to discriminate on the basis of race, still retain elements of that culture to this day. A putative class action filed late last year in a Manhattan federal court alleges that the Fire Department of New York (FDNY) has a long history of discrimination against African American employees and job applicants. Richardson, et al. v. City of New York, No. 1:17-cv-09447, complaint (S.D.N.Y., Dec. 1, 2017).

The New York City Human Rights Law (NYCHRL) prohibits employers from discriminating against employees and job applicants “because of the actual or perceived…race…of any person.” N.Y.C. Admin. Code § 8-107(1)(a). This provision is similar to those found in federal law and in state laws all over the country, including New Jersey race discrimination laws. The federal Civil Rights Act of 1991 protects the right to “make and enforce contracts” on equal terms, regardless of race, which includes employment contracts. 42 U.S.C. § 1981. A government employer, such as a city, state, or federal agency, that engages in employment discrimination on the basis of race may also be liable for civil rights violations under 42 U.S.C. § 1983.

The Richardson complaint describes a history of race discrimination in the FDNY, claiming that only “token integration” started in the 1960s. Richardson, complaint at 1. It notes two prior class actions alleging race discrimination against the FDNY in the hiring of firefighters. The first involved discrimination against African American and Hispanic firefighter applicants. Vulcan Society of New York City Fire Dep’t, Inc. v. Civil Serv. Comm’n, 490 F.2d 387 (2d Cir. 1973). The injunction issued by the court expired in 1977, and the city allegedly resumed discriminatory hiring practices for firefighters. The U.S. Department of Justice eventually filed suit, resulting in a ruling “that the FDNY’s hiring procedures discriminate against black applicants.” United States v. City of New York, 683 F.Supp.2d 225, 250-51 (E.D.N.Y 2010).

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